Punjab

Ludhiana

CC/19/184

Anita Rani - Complainant(s)

Versus

Kalra Hospital - Opp.Party(s)

Ashok Kumar Adv.

23 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  184 dated 11.04.2019.                                       Date of decision: 23.10.2024. 

 

Anita Rani aged 44 years W/o. Manjeet Singh, R/o. House No.2148, St. No.4/1, Rahon Road, New Kuldeep Nagar, Ludhiana.                                                                                                                                       ..…Complainant

                                                Versus

1. Kalra Hospital, Baba Than Singh Chowk, Shingar Cinema Road, Ludhiana through its M.D./Head Doctor C.S. Kalra,
2. Sh. C.S. Kalra, M.D./Head Doctor of Kalra Hospital, Baba Than Singh Chowk, Shingar Cinema Road, Ludhiana
3. Guru Nanak Clinic, Kailash Nagar Road, Opposite Bedi Sweets, Basti Jodhewal Road, Ludhiana through Doctor/Authorised person.
4. New India Assurance Company, Regional Office at 4^th Floor, Surya Tower 108, The Mall Road, Ludhiana through Branch Manager/Authorised person.                                                                                                                                          …..Opposite parties 

Complaint U/s. 12 of Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Ms. Shalini Joshi, Advocate

For OP1 and OP2          :         Sh. Nagesh Singh Gill, Advocate.

For OP3                         :         Complaint against OP3 already dismissed as                             withdrawn vide order dated 11.11.2022.

For OP4                         :         Sh. R.K. Chand, Advocate.

                  

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that on 03.07.2018, the complainant fell from the stairs of house due to which her right wrist got fractured and she was brought to OP1 hospital where OP2 Dr. C.S. Kalra advised for affixing plaster on her arm. The plaster was affixed on whole arm of the complainant by OP2 and OP2 directed her to visit the hospital after 40 days for removal of plaster.

                   The complainant stated that on 13.08.2018, she visited OP1  and OP2 as per their instructions and her X-ray was conducted but her bone was not at proper place. As such, she was given medicine and advised to visit again after 20 days. However, her situation became worse and she felt severe pain and water also started oozing from the plaster. Her husband got her checked from OP3, who again conducted X-ray and told that if her plaster remain intact for another 5 days, then her arm shall be amputated and due to infection her life was also in danger. Due to bad condition of the complainant, plaster was removed and was advised to again fix the plaster. The complainant further stated that she moved complaint against OP1 and OP2 before different authorities but no action was taken. Even she moved a complaint before SMO, Ludhiana who constituted board for medical opinion about the deficient service of OP1 and OP2. The husband of the complainant again moved complaint against member of said board Dr. Milan Verma dated 21.09.2018. But the constituted board gave wrong opinion in favour of OP1 and OP2. The complainant served a legal notice dated 07.02.2019 upon the OPs to which OP2 gave fake reply and flatly refused to give any compensation to her. Hence this complaint, whereby the complainant prayed for issuing directions to the OPs to pay treatment expenses of Rs.50,000/- along with compensation of Rs.5,50,000/- and litigation expenses of Rs.1,00,000/-.

2.                The complaint against OP3 was dismissed as withdrawn vide order dated 11.11.2022.

3.                Upon notice, OP1 and OP2 appeared and filed written statement assailed by complaint by taking preliminary objections on the grounds of maintainability; an abuse of process of law;  lack of cause of action; the complaint is frivolous, malafide and vexatious; the complainant has not come with clean hands; suppression of material facts etc.  OP1 and OP2 stated that there is no evidence documentary or otherwise which points out any medical error on their part in not treating the complainant as per medical procedures.

                   Under the column preliminary subjections, OP1 and OP2 stated that the patient was treated by OP1 hospital by Dr. Jaspreet S. Kohli, a well known medical practitioner (orthopedic surgeon) and is a renowned and senior consultant and has done various successful treatments in his long span of carrier. He has treated the patients with utmost due care by following all the medical ethics in true spirit and has rendered the true service to humanity. OP1 and OP2 further stated that OP2 Dr. C.S. Kalra, who is an ENT specialist has no role in treatment of the complainant. She only visited OP2 with complain of pain in her wrist, who after X-ray, referred her to Dr. Jaspreet S. Kohli. Even the medical report dated 29.09.2018 given by the medical board constituted for the said purpose opined that “the treatment was given/administered as per standard medical procedure. Hence, there is no gross negligence on the part of the treating doctor.” However, it was the complainant who had not fulfilled her obligations told to her to take care of plaster and the inured part should not be get wet in any situation as it could deteriorate her body part and will cause infection on the injury.  The complainant approached Senior Medical Officers and filed complaint against OP1 and OP2 who recorded their statement before the medical committee constituted by District Civil Surgeon and in enquiry, no negligence of Dr. C.S. Kalra or Kalra Hospital was found. However, the complainant admitted the fact that she had not attended the hospital regarding the follow up treatment of her arm as she was regularly visiting the doctor but she had not mentioned any dates specifically in her complaint regarding her visit and she never visited hospital again, if she had any complaint. The complainant had not submitted any record regarding spending Rs.50,000/- on her treatment. OP1 and OP2 further stated that all this situation arrived as the complainant took bath and due to her negligence the water entered in her plaster and she had not informed her family members nor she had informed the doctor as the water remained in the plaster, due to constant moisture and water inside the plaster effected the skin of the arm as she was unable to remove water from her plaster and neglected the same as a minor problem. Due to constant moisture and no proper air in the plaster, caused her skin problem and it was only her negligence towards her body which had led to her pain and suffering, regarding which she never informed the doctor. The complainant did not turn up in case of any problem to the concerned doctor but she went to an Ayurvedic Doctor Dr. R.S. Arora and she did not disclose that  what medicine she took and what was its effect on her body. OP1 further stated that it is insured with New India Insurance Company Limited vide policy No.32110036180200000349 who is a proper party to the present complaint.

                   On merits, OP1 and OP2 reiterated the crux of averments made in the preliminary objections and preliminary submissions. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                The complainant filed application for impleading New India Assurance Company as necessary party, which was allowed vide order dated 07.06.2023 subject to cost of Rs.200/- with direction to the complainant to file amended title by incorporating name of OP4 insurance company.

5.                Upon notice, OP4 appeared through Sh. Rajan Kumar Chand, Advocate and filed written statement   and by taking preliminary objections assailed the complaint on the grounds of maintainability; lack of jurisdiction; the complainant being estopped by her own act and conduct from filing the present complaint; the complainant being not come with clean hands; concealment of material facts;    the complaint being bad for mis-joinder and non-joinder of necessary parties etc. OP4 stated that there is no privity of contract between it and the complainant. Further OP1 has not complied with the terms and conditions of the policy by not giving any intimation to OP4 immediately after coming to know about the present complaint. According to OP4, it is not liable to pay any claim.

                   On merits, OP4 reiterated the crux of averments made in the preliminary objections. OP4 stated that the complainant herself alleged that the board constituted by SMO had already given opinion in favour of OP1 and OP2 and if the Board of Doctors have not found any negligence on their part then how the complainant can allege the negligence on the part of OP1 and OP2. OP4 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

6.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 to Ex. C8 and closed the evidence.

7.                On the other hand, the counsel for OP1 and OP2 tendered affidavit Ex. RW-A of Sh. C.S. Kalra, M/D Doctor of Kalra Hospital along with documents Ex. RA to Ex. RD and closed the evidence.

                   OP1 and OP2 filed an application seeking permission to place on record the prescription reports of Kalra Hospital, which was allowed vide order dated 07.08.2024. OP1 and OP2 closed additional evidence after tendering document Ex. RE (page No.1 and 2).

                   The counsel for OP4 tendered affidavit Ex. RW4/A of Ms. Manju Gupta, Manager of OP4 along with documents Ex. R4/1 and Ex. R4/2 and closed the evidence.

8.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents as well as written statements, affidavits and documents produced on record by the parties.

9.                 On 03.07.2018, the complainant had a fall from the stairs of her house resulting in fracture of Distal Radius of right arm and she visited OP1 hospital and met OP2, an ENT Surgeon. On the advice of OP2, the complainant visited Dr. Jaspreet S. Kohli, Orthopedic surgeon for treatment and a plaster was affixed which was removable after 40 days.  On 13.08.2018, the complainant again visited OP1 hospital where her X-ray was got conducted. Dr. Jaspreet S. Kohli was of the opinion that the fracture has not yet healed fully and she was advised to visit after 20 days for removal of the plaster. During this period, according to the complainant she experienced immense pain and she visited OP3 hospital being run by an Ayurvedic doctor. The said doctor opined that removal of plaster is imminent and in case it is not removed it would result in severe infection and Amputation of her arm. Accordingly, the complainant got the plaster removed from the said doctor. Assuming the opinion of doctor of OP3 hospital to be conclusive, she moved various applications against OP1 and OP2 alleging medical negligence to various civil authorities. Civil Surgeon, Ludhiana constituted a board of doctors to examine the issue raised by the complainant. Before the board could draw its final conclusion, the husband of the complainant also alleged the conduct of one of doctors to be biased and sought his removal from the medical board. Now dis-satisfied from the outcome of the opinion of medical board, the complainant filed the present complaint on the basis of identical allegations.

10.              Now the point of consideration arises whether OP1 and OP2 were negligent in treating Distal Radius fracture of the complainant. If so, its effect.

11.              Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

                   A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

12.              In the present case, the first medical board was constituted on the application of the complainant and her husband. They were associated with the proceedings. Dr. Kalra and Dr. Jaspreet S. Kohli also joined the investigation. The constituting Dr. Harish Kirpal, M.O. (Ortho) and Dr. Milan Verma, MBBS, General Surgeon examined the record and factual position in detail, were of the opinion that standard treatment was carried out as per protocol and there is no negligence on the part of the treating doctors. Both the doctors have also referred to the side effects of sores which could be due to lack of proper care by the patient herself. The medical board constituted by the Civil Surgeon, Ludhiana on the direction of this Commission, was also of the similar opinion, mentioned hereinbefore.

13.              This Commission sought legal opinion from Civil Surgeon, Ludhiana by constituting a Medical Board of Doctors. The Civil Surgeon, Ludhiana constituted a Board of Doctors consisting of Dr. Mandeep Singh (Ortho), Civil Hospital, Raikot, Dr. Aditya Parkash Singla (Ortho), Civil Hospital, Ludhiana, Dr. Charan Kamal (Forensic), Civil Hospital, Ludhiana and Dr. Jagpreet Singh (Surgeon), Civil Hospital, Ludhiana, who submitted the report and the same was in original was sent to this Commission. In the said report, the Medical Board has opined as under:-

“The treatment given at Kalra Hospital is well within the recommended guidelines. The known complication of POP cast application are pressure sores, blister, non unions and malunion, are few of them.

The complication in this case is a documented compilation which requires close follow up so that the complications could have been avoided. However, it is imperative to mention that precaution regarding POP Cast were not mentioned on OPD slips (as per record); but told verberaly by the treating doctor (as per statement given by Dr. Kohli). There is nothing to prove that there is any gross negligence on part of treating doctor regarding management of injury, however precautions regarding POP cast care should have been mentioned in the OPD slip.”

 

14.              Conjoint reading of both the aforesaid opinions of medical board of doctors shows that all the doctors were unanimous of the opinion regarding following of standard operating protocol by the treating doctor. No contrary evidence has been lead by the complainant in the form of any medical opinion of any expert or any medical literature. Further, the initial onus to prove the deficiency was on the complainant but he failed to discharge the same. In this regard, a reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam (2009 SC), this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673  held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.”

 

15.              Reference can be further made to 2023 LiveLaw (SC) 931 in M.A. Biviji Vs Sunita & Others whereby the Hon’ble Supreme Court of India has made the following observations:-

“…….36. As can be culled out from above, the three essential ingredients in determining an act of medical negligence are: (1.) a duty of care extended to the complainant, (2.) breach of that duty of care, and (3.) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner.

38. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.”

 

16.              It is also seen that the complainant was fully aware of the fact that Dr. Jaspreet S. Kohl, Orthopedic Surgeon treated her at OP1 hospital but the said doctor has not been intentionally made a party in the present complaint. The presence of Dr. Jaspreet S. Kohli, Orthopedic was very much essential for conclusive and proper adjudication of the matter in controversy. It is also a principle of natural justice that no person can be condemned unheard. Further the opinion of a non-orthopedic surgeon which triggered the filing of complaints, cannot hold good in favour of the complainant.

                   By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

17.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.          

18.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:23.10.2024.

Gobind Ram.